CJL v Children's Guardian [2017] NSWCATAD 63

CJL v Children's Guardian [2017] NSWCATAD 63

The applicant was a disqualified person because of his offence of an act of indecency with a person 16 years and over. Considering the mandatory factors in section 30(1), his alcohol-related criminal history, past relapses after professed abstinence, recent and early-stage treatment and remission, and the absence of conditions that could be attached to an enabling order, the Tribunal was not satisfied on the balance of probabilities that he had rebutted the statutory presumption that he posed a risk to the safety of children. The evidence established a real and appreciable risk of harm to children if his antisocial, alcohol-disinhibited conduct were repeated in their presence or directed...

Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Principal Judgment After Hearings on 8 August 2016 and 15 November 2016
Outcome
Application refused and dismissed.
Legal Topics
['enabling Order' 'disqualified Person' 'risk to Safety of Children' 'onus of Proof' 'alcohol Related Offending' 'tribunal Procedure']
['administrative Law' 'child Protection' 'working With Children Check' 'criminal Law'] ['enabling Order' 'disqualified Person' 'risk to Safety of Children' 'onus of Proof' 'alcohol Related Offending' 'tribunal Procedure']

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Procedural Posture

Application for an Enabling Order Under Section 28 of the Child Protection (working With Children) Act 2012 (nsw) After Refusal of a Working With Children Check Clearance / Principal Judgment After Hearings on 8 August 2016 and 15 November 2016

Legal Issues

  1. 1 ['Whether the applicant proved, contrary to the statutory presumption in section 28(7) of the Child Protection (Working with Children) Act 2012 (NSW), that he did not pose a risk to the safety of children.' 'Whether an enabling order should be made so that the applicant would not be treated as a disqualified person for the purposes of the Act.' "How the mandatory considerations in section 30(1) of the Child Protection (Working with Children) Act 2012 (NSW) applied to the applicant's offence, criminal history, alcohol use and conduct since the offence."]

Ratio Decidendi

The applicant was a disqualified person because of his offence of an act of indecency with a person 16 years and over. Considering the mandatory factors in section 30(1), his alcohol-related criminal history, past relapses after professed abstinence, recent and early-stage treatment and remission, and the absence of conditions that could be attached to an enabling order, the Tribunal was not satisfied on the balance of probabilities that he had rebutted the statutory presumption that he posed a risk to the safety of children. The evidence established a real and appreciable risk of harm to children if his antisocial, alcohol-disinhibited conduct were repeated in their presence or directed...

Court Disposition

Application refused and dismissed.

Orders

  • ['The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 23 December 2015 is refused and dismissed.' 'Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.']